Thursday, January 20, 2005
Congratulations to Baylor CrimProf Mark Osler for being quoted in the Booker decision. Justice Steven's quoted the following passage from his Federal Sentencing Reporter article Uniformity and the Death of Traditional Sentencing Goals in the Age of Feeney: "While the thick-as-your-wrist Guideline Manual specifically directs sentencing judges to make thousands of determinations on discrete points, not once does it expressly direct that a specific decision leading to the applicable guideline range on the 256-box grid should or must turn on an individualized consideration of the traditional goals of sentencing." Details. . . [Mark Godsey]
Wednesday, January 19, 2005
In People v. Galvadon, two police officers chased a suspect into a liquor store and then into a back room of the store that was typically used by store employees for commercial purposes. Once there, the officers found marijuana in plain view, and promptly arrested the store manager on duty at the time (in additional to the suspect they were chasing). The store manager moved to suppress the evidence, arguing that that he had a reasonable expectation of privacy in the back room, and that therefore the officers' conduct amounted to an unconstitutional search. The Supreme Court of Colorado accepted the store manager's argument despite the fact that: (1) the liquor industry is a highly-regulated industry, which the state argued had diminished any expectation of privacy the store manager might have otherwise enjoyed in the space, and (2) several video cameras were located in the back room that recorded everything that occurred there. Regarding this second point, the state had argued that the store manager lost his expectation of privacy by "knowingly exposing" his actions in the back room to the store owner, who had access to the tapes. Rejecting this argument, the court stated: "The surveillance system in this case was viewable only by Galvadon and the owner of the store. The simple fact that Galvadon's activities were being recorded via the surveillance system is not enough to demonstrate he had no reasonable expectation of privacy from government intrusion. There is no evidence that the surveillance system was reviewable by the government or government officials." BNA summary here. Decision here and here. [Mark Godsey]
The trial of former WorldCom CEO Bernard Ebbers starts today in federal court in New York City. He is charged with one of largest frauds in U.S. history, topping $11 billion. Details. . . Listen to NPR story here. Also, jury selection has begun in the retrial of Dennis Kozlowski and Mark Swartz, formerly of Tyco International. Their first trial in Mahattan state court resulted in a mistrial when one juror held out for acquittal. Details . . . Listen to NPR story here. [Mark Godsey]
The police in Manila have instituted a new program whereby those who are caught jaywalking are smacked with a wet towel. Under the program, 20 patrol cars circle the city with wet blankets attached to poles ready to impose instant justice. Story . . . [Mark Godsey]
Economics professors Brian Jacob of the JFK School of Government, Lars Lefgren of BYU and Enrico Moretti of UC-Berkeley have posted The Dynamics of Criminal Behavior: Evidence from Weather Shocks on SSRN. Here's the abstract:
The persistence of criminal activity is well documented. While such serial correlation may be evidence of social interactions in the production of crime, it may also be due to the persistence of unobserved determinants of crime. Moreover, there are good reasons to believe that, particularly over a short time horizon, there may actually be a negative relationship between crime rates in a particular area due to displacement. In this paper, we exploit the correlation between weather and crime to examine the short-run dynamics of criminal behavior. Drawing on crime-level data from the FBI’s National Incident-Based Reporting System, we construct a panel of weekly crime data for 116 jurisdictions. Using the plausibly exogenous variation in lagged crime rates due to unexpected weather shocks, we find that the strong positive serial correlation documented in OLS is reversed. A ten percent increase in violent crime in one week is associated with a 2.6 percent reduction in crime the following week. The corresponding reduction for property crime is 2.0 percent. Additional displacement appears to occur over a longer time horizon. Furthermore, the results do not appear to be driven by persistence in weather conditions over time or displacement of non-criminal economic activity. These findings suggest that the long-run impact of temporary crime prevention efforts may be smaller than the short-run effects.
To obtain the paper, click here. [Mark Godsey]
Tuesday, January 18, 2005
From the Smoking Gun: "Richard Hatch, the first winner of CBS's "Survivor," was charged today with failing to report his $1 million reality TV windfall to the Internal Revenue Service. The below two-count criminal information, unsealed today in U.S. District Court in Rhode Island, charges Hatch with filing a false 2000 tax return that omitted his seven-figure "Survivor" winnings. The nudity enthusiast, 43, is also charged with filing a false return for 2001 (he allegedly did not report $321,000 paid to him by a Boston radio station). If convicted of the felony charges, Hatch could face a maximum of five years in prison for each count and could be hit with a $250,000 fine. Hatch is scheduled to be arraigned on the charges in Providence federal court January 24." [Mark Godsey]
Rompilla v. Beard, 04-5462, questions presented: (1) Does Simmons v. South Carolina, 512 U.S. 154 (1994) require a life-without-parole jury instruction where the only alternative to a death sentence under state law is life without the possibility of parole? (2) Has a defendant received unconsitutionally ineffective assistance of counsel at a capital sentencing hearing where counsel does not review the defendant's prior conviction record which would provide mitigating evidence regarding the defendant's traumatic childhood and mental health impairments? More details here. Read Talkleft's analysis of the case here.
Johnson v. U.S., 04-05, question presented: When a federal court bases an enhanced sentence on a vacated state conviction, is the elimination of the state conviction a "fact" supporting a prisoner's 28 U.S.C. sec. 2255 claim requiring reduction of the prisoner's sentence? Details here. [Mark Godsey]
In the last decade of the twentieth century, every state adopted a new criminal offender community notification law. While critics challenged these provisions on a number of grounds, one potential consequential cost of these laws received no attention: the possibility that they might disparately impose their significant burdens on racial minorities and, particularly, African-Americans. This article breaks this silence about race and Megan's Laws, establishing that community notification provisions do have a significantly disparate racial impact. Using newly gathered statistical data, across multiple jurisdictions, it shows that African-Americans are over-represented on these public registries of criminals. It considers how the contours of these provisions may promote this result, and also explores why this disparity is consequential.
Moving from an empirical study of these provisions, the article then investigates the reasons why race concerns never surfaced in the community notification debates. Given the centrality of racial critiques in the criminal law literature, one might have expected legislators, advocates, or at least scholars to have investigated this issue previously. The article suggests several reasons for this remarkable silence, including the narrow scope of equal protection doctrine, failures of legislatures to demand transparency about race, social phenomena such as moral panics and availability cascades, and the framing of Megan's Laws as an answer to white-on-white crime. It then offers suggestions for doctrinal, legislative, and scholarly moves that increase the transparency of race issues, exposing them to fuller democratic debate.
Sounds pretty interesting. To obtain a copy of the paper, click here. [Mark Godsey]
Findlaw.com and CourtTV columnist Jonna Spilbor discusses the phenomenon of witnesses, like Amber Frey, cashing in on their roles in high-profile criminal trials. She writes:
Should jurors and lay witnesses in criminal trials be permitted to turn a civic duty into cold hard cash? In my opinion, the cons clearly outweigh the pros. The First Amendment issue is one for the courts to decide; but the policy issue, at least, clearly counsels against allowing profit from either testimony or jury service. A criminal defendant is entitled to a fair and impartial jury of his peers. When the prospect of money enters in the jury box, it's not a stretch to surmise that some juror, somewhere, will be more interested in the prospect of cold hard cash than in the thankless job of jury duty. But jurors should be thinking about justice - not how they can profit. One thing is certain: justice should never be for sale. What about witnesses? They, too, should keep their eye on the ball: They ought to be thinking of telling the truth, not of maximizing their profit. When money enters the picture, there is a very real potential that "star witnesses" with dollars signs in their eyes may color or create "evidence" to maximize their profitability. After all, much like real celebrities, these courtroom "stars" are made, not born. They know more lurid testimony will make their stories more saleable. The temptation to exaggerate - or outright lie - may prove irresistible.
Spilbor goes on to suggest that Frey could be prosecuted under California law for receiving compensation as a non-expert witness, and that, at a minimum, her book deal should have been disclosed to the defense as ammunition for cross-examination. Read more . . . [Mark Godsey]
"As a condition of release from jail, probationers in Oakland are now required to stay in their homes between the hours of 10 pm and 6 am seven days a week. The only exceptions are for work and emergencies. Oakland Mayor Jerry Brown says 80 percent of homicides in the city involve felons who are on probation and parole, and 70 percent of homicides occur at night." Full story . . . [Mark Godsey]
West Publishing Company and Foundation Press, sponsors of this blog and our Law Professor Blogs Network, have asked that we help identify our readership through this on-line survey. They (and we) would like to figure out the mix of professors, judges, lawyers, librarians, students, and others who read this blog. The survey takes less than a minute to complete. Thanks in advance for your help.
Monday, January 17, 2005
Evidently, the purpose will be to challenge voters who may have been ineligible. (But: Even if ineligible voters voted, how will anybody know who they voted for? Unless . . . that's on file somewhere.) Story here. [Jack Chin]
A few weeks ago, I posted a story about the police setting up permanent video cameras to conduct surveillance of high crime areas in Dallas. This weekend, while doing my normal Google scans for interesting stories, I ran across a similar story about a new police surveillance system in New Orleans. This prompted me to to run a Google search on the topic, and within 5 minutes I found articles about new police surveillance systems in public places in Washington D.C., Chicago, New York City, Honolulu, Baltimore, Newark, Tampa, Virginia Beach, Memphis, Tacoma, Hollywood, Anchorage, San Diego, Nashville and Palm Springs. Chicago's surveillance network, which the police call "Operation Disruption," includes video cameras with gunshot detectors and microphones so sensitive they can detect when a silencer is being used to muffle gunfire. Two months ago, Chicago spent $3 million to expand the program. Washington D.C.'s system, which the police installed without public knowledge or approval from city council, allows an officer to zoom in on people one-half mile away with the flip of a switch. New York City's system allows a cop to zoom in close enough to read a Broadway show ticket in a scalper's hand from 50 feet away.
The ACLU opposes this trend, and convinced the city of Oakland to drop their video surveillance program out of concerns for privacy. Besides the obvious privacy concerns, the ACLU is worried about abuse, and points to a recent example where a tragic suicide caught on film by an NYPD camera somehow ended up on a porn site. But police departments say the video surveillance acts as a deterrent and allows them to solve crimes after-the-fact. They also cite to national security concerns post 9-11. You can read and listen to NPR stories on the subject here, which do a good job of summarizing the arguments on both sides of the debate. Also see CrimProf Christopher Slobogin's law review article on the subject here. [Mark Godsey]
Here are some reported cases involving Dr. King. In King v. State, 119 S.E.2d 77 (Ga. App. 1961), the court upheld a conviction for a traffic offense but vacated the sentence of 12 months in the work house. Dr. King was a defendant in Gilligan v. King, 264 N.Y.S.2d 309 (Sup. Ct. 1965), aff’d, 290 N.Y.S.2d 1014 (App. Div. 1968), a libel action pursued by a NYPD Lieutenant who killed a 15 year old black which set off rioting in New York. Article here. He was also a defendant in the New York Times v. Sullivan action, a libel case in which the plaintiff was a police executive criticized for brutalizing and/or failing to protect protesters. Parks v. New York Times Co., 195 F. Supp. 919 (M.D. Ala. 1961), rev’d, 308 F.2d 474 (5th Cir. 1962), certiorari denied, 376 U.S. 949 (1964). As Mark Eckenwiler pointed out, he was convicted of criminal contempt for violating an injunction against picketing in Walker v. City of Birmingham, 181 So.2d 493 (Ala. 1965), aff'd, 388 U.S. 307 (1967). He was the plaintiff in King v. Mister Maestro, Inc., 224 F. Supp. 101 (S.D.N.Y. 1963), an intellectual property action protecting his copyright on the “I Have a Dream” speech, and in Bond v. Floyd, 251 F. Supp. 333 (N.D. Ga.), rev’d, 385 U.S. 116 (1966), an action protecting Julian Bond’s right to a seat in the Georgia legislature in spite of his opposition to the Vietnam war. Here is his Letter from Birmingham Jail. UPDATE: LaborLawProf has a good post, and TalkLeft has a nice collection of comments and links. [Jack Chin]
The Ninth Circuit held last week in U.S. v. Mayo that the Belton rule, which allows officers to search the passenger compartment of a car incident to the arrest of a "recent occupant," also permits a search of the hatchback area behind the rear seat. While a few other courts have agreed that hatchback areas may be searched under Belton, Mayo appears to be the first case to apply Belton to a hatchback area that had been closed off from the passenger compartment with a hatchback cover. Apparently, the car in Mayo--a Honda Civic hatchback--came with one of those factory-installed covers that snaps into place and turns the hatchback into a protected storage area primarily accessible from the outside through the back hatchback door. The real question in Mayo, therefore, was whether the closed hatchback area was more comparable to trunk space, which the police are not allowed to search incident to arrest under Belton, or the passenger compartment, which police are free to search.
The Ninth Circuit recognized that a passenger in such a car might have "difficulty" obtaining a weapon from such a closed hatchback area (potential access to weapons was the justification in Belton for allowing searches of the passenger compartment incident to arrest). Nevertheless, the court held that this area was more comparable to the passenger compartment than the trunk and could therefore be searched.
The Mayo holding seems like a stretch to me. While it's possible that a passenger in the passenger compartment could access a weapon hidden in a sealed-off hatchback, this would be no easier than accessing a weapon in a trunk (most cars these days allow occupants to snap forward one of the back seats revealing an open pathway to the trunk). The purpose of hatchback covers are in essence to convert the space into the functional equivalent of a trunk, and there just doesn't seem like a major difference between the two. But then again, the courts at every turn have willingly expanded Belton past its initial rationale (which was already an expansion on the principles set forth in Chimel), particularly after Thornton. Seems like the dissent in Belton was right when it warned that the Belton rule isn't so "bright-line" after all. Or maybe it is a bright-line rule. Indeed, the Mayo court seemingly adopted the following bright-line rule: Any back part of any vehicle may now be subject to search incident to arrest unless it is officially called "the trunk" in the owner's manual. [Mark Godsey]